Mr~. Austin Anderson Opinion No. S-88 

Criminal District Attorney 

Bexar County Re: Necessity to condemn right 

San Antonio, Texas of access to a future f*eeway, as distinguished from 

right of access to the exiati,ng highways which the freeDear Mr. Anderson: way will replace. 

Jn your recent opinion request concerning freeways, Article 

10850, Vernon’s Civil Statutes, you make the following statements and ask 

the follewing questions. 

“Section 1 of the Article is the part with which we are 

concerned. That section reads as follows: 

‘The State Highway Commission or the 

governing body of any incorporated city or town, 

within their respective jurisdictions nxy do any 

and all things necessary to lay out, acquire, co&- 

struct, maintain and operate any section or any 

portion of any Stprte Highway or C,ity street as a 

freeway, and to make any highway or street wit& 

in their respective jurisdictions a freeway, oxoept that no existing State Highway or City street 

shall be converted into a freeway except with toe 

consent of the owners of abutting lands, OT Isy the 

purchase or condemnation of their right ef access 

thereto, providing, however, nothing herein shall 

be construed as requiring the consent of the owners of abutting lands where a State Highway, or 

City street is constructed, established, or located 

for the first time as a new way for the use of vehicular and pedestrian traffic. ‘* 

“We think that Bexar County is bound by this sb&ub 

for the reason that under Article. 6674n, the State Highway 

Comrnbsionacka throug,h the COIXNniSSiOndi8 CWart. 

“The question we would like 8nAwared is %b: 

‘ls it legally sufficient to conde~mn the 

right of actes,s in and to the existing highway, or 
- -- 

e Mr. Austin Anderson, page 2 (S-88) 

is it necessary to condemn the right of access 

in and to the “freeway?“’ 

“You will notice that Section 1 reads in part that: 

‘No existing State Highway or City street 

shall be converted into a freeway except with the 

consent of the owners of abutting lands or by the 

the purchase or condemnation of their right of 

access thereto, 0 a D ’ 

“The antecedent to ‘theretoP seems to be the hey to 

the proper interpretation. The question resolves itself into 

this: To what does ‘thereto’ have reference, existing highway or freeway? n 

In 1951, the Texas Legislature passed the present Freeway 

Act, and defined ‘“freeway” in Section 3 thereof. This definition is as follows: 

“Section 3. ‘Freeway’ means a state highway or city 

street in respect to which the right or easement of access to 

or from their abutting lands has been acquired in whole or in 

part from the owners thereof by the State Highway Commission or the governing body of an incorporated city or town as 

herein above provided.” Article 1085a, V. C. S. 

Such a definition of freeway clearly presupposes the existence 

of access and egress rights to exist in abutting property owners to thefreeway. 

Section 1 of Article 1085a merely authorizes the State Highway Commission or the governing body of any incorporated city or town 

. to construct a freeway. Hence, that portion of Section 1 which reads “except that no existing stats highway or city street shall be converted into 

a freeway except with the consent of the owners of abutting lands, or by 

the purchase or condemnation of the right of access tlurreto,“clearly authorizes the Highway Commission to do no more than build a freeway, 

as defined by Section 3. 

It is our opinion that in Section 1 of Article 1085a, V. C. S.., 

“thereto” refers to freeway. Therefore, it will be necessary for you t+ 

condemn the right of access in and to the freeway. 
Mr. Austin Anderson, page 3 (S-88) 

SUMMARY 

Under Section 1 of Article J085a, V. C. S.. it is 

necessary to condemn right of access to a future freeway, as distinguished from right of access to the existing highway which the freeway will replace. 

APPROVED: Yours very tr~uly, 

Rudy G. Rice JOHN BEN SHEPPERD 

State Affairs Divis~ion Attorney General 

C. K. Richards 

Reviewer 

Robert S. Trotti 

First Assistant 

’ Milton Richardson 

Assistant